AUGUSTUS T. POST, Appellant,
EMMA C. POST, Respondent.
APPEAL by the plaintiff, Augustus T. Post, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.
Charles W. Coleman, for the appellant.
John J. Kirby, for the respondent.
Action to annul a marriage on the ground that at the time the contract was entered into the defendant had another husband. There is little or no dispute between the parties as to the material facts. It appears that on January 5, 1871, the defendant was married in the State of Louisiana to one John S. Keaghey; that after the marriage they resided in Louisiana until November, 1875, when they moved to Galveston, Tex., and there continued to live together as husband and wife until some time in May, 1878, when, for sufficient cause, the defendant left her husband and went to New Orleans, La.; that when she left she did not intend to and never has returned to Keaghey; that in February, 1882, Keaghey, who had continued to reside in Texas, commenced an action against her in that State for a dissolution of the marriage on the ground of abandonment; that, pursuant to the laws of Texas, she was personally served in New Orleans with a notice to appear in the action, and with a certified copy of the petition, but she did not appear, and a decree was thereafter entered upon her
default dissolving the marriage; that in August, 1895, she married one Holliday, in the State of New York, where they resided for some time; that subsequently she commenced an action in the Supreme Court of that State for a separation on the ground of abandonment; that he appeared in the action, and, as a counterclaim, asked that the marriage be annulled on the ground that she never had been legally divorced from Keaghey; that this contention was sustained by the court, and a judgment entered on December 1, 1898, annulling the marriage; that subsequently the plaintiff and defendant were married in the State of New York, where they then and have since resided; that Keaghey and Holliday were both living when this marriage was entered into; that the plaintiff and defendant lived together as husband and wife until 1907, when this action was commenced, the complaint alleging both the former marriages of the defendant and that her marriage with Keaghey was in full force and effect at the time she married the plaintiff; and the judgment demanded was that the marriage be declared void.
At the conclusion of the trial--the foregoing facts having been established-- the court dismissed the complaint upon the merits, holding that the defendant was legally free to marry at the time of her marriage with the plaintiff. From the judgment entered to this effect the plaintiff appeals.
The principal question presented by the appeal is the validity of the Texas decree dissolving defendant's marriage with Keaghey. The appellant's contention is that this decree will not be recognized as valid in the State of New York because at the time the suit was brought the defendant had acquired a separate domicile in Louisiana; she was not personally served with process in Texas; did not appear in the suit; and for that reason the Texas court did not acquire jurisdiction over her. At the trial evidence was offered to the effect that defendant, at the time the Keaghey action was commenced, considered Texas as her permanent home or domicile, but this question seems to me to be immaterial because, if it be conceded that she never intended to return to Texas after leaving Keaghey, I am of the opinion that the validity of the Texas decree is, nevertheless, conclusively established by the
decision of the United States Supreme Court in the case of Atherton v. Atherton (181 U.S. 155), in which the essential facts were quite similar to these. In that case the parties were married in New York, but moved immediately to Kentucky, where they lived as husband and wife for some three years. The wife then left her husband owing to his cruel and abusive treatment without fault on her part, and returned to her former home in New York. The husband remained in Kentucky, and there brought an action for divorce on the ground of desertion. Notice of the commencement of the action was sent by mail to the wife in New York, in accordance with the statutes of Kentucky, but she did not appear, and a decree was entered dissolving the marriage. Subsequently she brought an action in the State of New York for a separation, in which the husband appeared and set up the Kentucky decree as a bar. The court refused to recognize the validity of this decree, it having been rendered on constructive service without jurisdiction over the person of the wife, and granted the plaintiff a judgment as prayed for in her complaint. This judgment was affirmed by the Court of Appeals (155 N.Y. 129), but reversed by the Supreme Court of the United States (181 U.S. 155). In reversing the judgment the court said: 'In this case the divorce in Kentucky was by the court of the State which had always been the undoubted domicil of the husband, and which was the only matrimonial domicil of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky * * *. We are of opinion that the undisputed facts show that such efforts were required by the statutes of Kentucky and were actually made to give the wife actual notice of the suit in Kentucky as to make the decree of the court there, granting a divorce upon the ground that she had abandoned her husband, as binding on her as if she had been served with notice in Kentucky or had voluntarily appeared in the suit. Binding her to that full extent it established beyond contradiction that she had abandoned her husband and precludes her from asserting that she left him on account of his cruel treatment.'
This is precisely the situation in the case at ...